06/22/2009 05:12 am ET | Updated May 25, 2011

The New Guantanamo

Thursday morning Barack Obama defended his decision to close Guantanamo. Coming on the heels of the Senate's overwhelming rejection of funds to close the base, the speech was an attempt at "going public." He aimed to speak over the heads of Congress to the American people, to convince them that -- unlike his predecessor in the Oval Office -- he has a coherent and effective plan to tackle the "war on terror."

But his hands are tied. As key advisor David Axelrod told the New York Times, "People don't understand that much of what we're doing is being driven by the courts."

How so? Consider the future of Guantanamo -- and the future of the new Guantanamo, Bagram Air Base.

Last June the Supreme Court rejected the Bush Administration's claim that Guantanamo is beyond the reach of the Constitution. Once the Court declared that the right of habeas corpus applied -- that the detainees had the right to challenge their detention -- Guantanamo lost one of its major rationales: that it was an offshore "legal black hole."

Coupled to the fact that the base long ago became, in President Obama's words, "a symbol that helped al Qaeda recruit terrorists," closing it down was the inevitable choice. Indeed, it was even the choice of George W. Bush, who released many more detainees than has Obama and spoke favorably about shuttering the base.

Much of the media attention in recent days has focused on the challenges posed by actually closing Guantanamo. Will some detainees move to supermax prisons in the US? Will others be handed over to abusive foreign governments?

What has received far less attention is what will be done to future detainees. As the President said today, we remain at war with al Qaeda. That means we will continue to capture and detain suspected terrorists.

Where will they go? Many are already held in Bagram Air Base. Bagram, a vast and secretive facility, is hardly a household name. Yet there are at least twice as many detainees there as in Guantanamo.

There are no plans to close Bagram. More strikingly, the Obama Administration has taken almost precisely the same stance as the Bush Administration with regard to the constitutional rights of detainees there. Like Bush before him, Obama argues that the Constitution does not follow the flag to Bagram.

Whatever its merits, the claim that Bagram detainees have no constitutional rights was rejected last month by a federal judge. Citing last year's Supreme Court decision about Guantanamo, the lower court held that four detainees who were captured elsewhere and brought to Bagram also enjoyed the right of habeas corpus.

The lower court ruling does not apply to the vast majority of Bagram detainees, who were captured in and around the Afghan war. Yet even if the decision is upheld (it is currently under appeal) Bagram remains an attractive site for future detention. A successful closing of Guantanamo will only increase its appeal.

The President still faces the problem of what to do with the remaining Guantanamo detainees. The Senate amendment just passed bars the use of any funds for the transfer of detainees to the United States--though, pointedly, the amendment excludes Puerto Rico, Guam, and other insular possessions from the definition of the "United States".

But it is worth recalling that at least one detainee has already been moved from Guantanamo to detention on the mainland: Yaser Hamdi. (Hamdi was ultimately released to Saudi Arabia). President Bush initiated that move under his own constitutional powers as Commander-in-Chief. Though the political costs will be high President Obama, if need be, can do the same.

Whatever happens, future detainees are unlikely to brought to the United States. Instead, they may go to the new Guantanamo we will soon be hearing more about: Bagram.